People ex rel. Schoen v. Murphy

Hill, P. J. The order dismissing the writ should be reversed and the matter remitted to the County Court for proof concerning the assertion that on August 17, 1934, the New York State Parole Board granted the relator a parole on his indeterminate sentence of three and a half years minimum to ten years maximum for robbery in the second degree. The sentence of five to ten years additional for committing the crime while armed with a pistol is illegal for want of jurisdiction. “ The fact that defendant was armed with a dangerous weapon during the commission of the crime is no part of the crime itself.” (People v. Krennen, 264 N. Y. 108, 110.) [217] Defendant’s plea of guilty to the crime of robbery in the second degree was not an admission that he was armed with a dangerous weapon during the commission of the crime, for this crime may be committed without the use of such a weapon. “After plea, the judge should conduct an inquiry and take testimony, if necessary, before passing sentence.” (People v. Krennen, supra, 109.) The record here indicates that no inquiry by the taking of testimony or otherwise was conducted. The indorsement on the cover of the indictment, “ and it appearing that each was armed at the time of the crime, said imprisonment is increased by State Prison not less than 5 years 0 months, nor more than 10 years 0 months for being so armed,” gave no jurisdiction to pronounce the additional sentence. On habeas corpus the defendant has the right to show that the committing magistrate acted without authority, notwithstanding the commitment recites the necessary facts to give jurisdiction; no court or officer can acquire jurisdiction by the mere assertion of it. (People ex rel. Tweed v. Liscomb, 60 N. Y. 559, 572.) Habeas corpus is a proper remedy. (People ex rel. Hubert v. Kaiser, 206 N. Y. 46; People ex rel. Scharff v. Frost, 198 id. 110.) McNamee and Heffernan, JJ., concur; Crapser, J., dissents, with an opinion, in which Rhodes, J., concurs.